Tuesday, May 8, 2018

Furner on Freedom of Contract and the Police Power in Gilded Age America

Mary O. Furner, University of California, Santa Barbara, has published Defining the Public Good in the U.S. Gilded Age, 1883-1898: “Freedom of Contract” versus “Internal Police” in the Torture History of Employment Law and Regulation, in the (gated) Journal of the Gilded Age and Progressive Era 17 (April 2018): 241-275.  Here’s an extract:
Long recognized as a case that left tenement cigar workers in New York City unprotected from hazards to their health, the New York State high court's In re Jacobs ruling in 1885 also raised anew disagreements regarding the extent of legislative powers known as “police” that were reserved to the states by the federal constitution. Upholding unfettered freedom of contract, the Jacobs ruling prevailed as a governing precedent through a string of related cases until its reversal in Holden v. Hardy, 1898, a working hours law for Utah miners and smelter workers. Between Jacobs and Holden, new thinking emerged on the meaning of class, the role of government, and the drivers of the wealth of nations. In Holden, drawing from Munn v. Illinois, the U.S. Supreme Court located a public interest in sustaining the health and strength of such workers on the grounds that the entire public depended on their productive capacity to ensure the public good of a strong and growing state economy. This precedent did not hold for New York State bakers in Lochner v. New York, but it became controlling again in West Coast Hotel v. Parrish, which elevated the broadened conception of “police” from Holden to the national level. As labor union membership along with other vital structures of the New Deal order have declined during the New Gilded Age, employment regulation has tended to relapse toward the individualist, contractarian regime of the Old Gilded Age announced in In re Jacobs.

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